United States v. Juan Elisea-Gonzalez , 574 F. App'x 775 ( 2014 )

FILED
NOT FOR PUBLICATION MAY 21 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 12-10116
Plaintiff - Appellee, D.C. No. 4:11-cr-01998-CKJ
v.
MEMORANDUM*
JUAN ELISEA-GONZALEZ,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Arizona
Marvin E. Aspen, District Judge, Presiding**
Submitted May 13, 2014***
Before: CLIFTON, BEA, and WATFORD, Circuit Judges.
Juan Elisea-Gonzalez appeals from the district court’s judgment and
challenges the 75-month sentence imposed following his guilty-plea conviction for
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marvin E. Aspen, United States District Judge for the
Northern District of Illinois, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
reentry after deportation, in violation of 8 U.S.C. § 1326. We have jurisdiction
under 28 U.S.C. § 1291, and we vacate and remand for resentencing.
Elisea-Gonzalez makes various allegations of error, including that the
district court erred by failing to sua sponte award him a third-level reduction for
acceptance of responsibility under U.S.S.G. § 3E1.1(b). By joint motion, the
parties acknowledge that remand for resentencing is warranted in light of a 2013
amendment to the commentary accompanying U.S.S.G. § 3E1.1(b). See U.S.S.G.
§ 3E1.1 cmt. n.6. The parties request, however, that the appeal proceed as to
Elisea-Gonzalez’s challenge concerning the district court’s application of a 16-
level enhancement under U.S.S.G. § 2L1.2(b)(1)(A). We grant the parties’ motion.
Elisea-Gonzalez first challenges the 16-level enhancement on the ground
that it results in impermissible double counting. This contention is foreclosed. See
United States v. Garcia-Cardenas, 555 F.3d 1049, 1050 (9th Cir. 2009) (per
curian). Elisea-Gonzalez also challenges the 16-level enhancement as per se
unreasonable, arguing that the enhancement is neither “empirically sound” nor
based on Congressional intent. We have previously observed that the enhancement
under section 2L1.2(b) implements Congressional intent, United States v.
Ramirez-Garcia, 269 F.3d 945, 947-48 (9th Cir. 2001), and “serves the legitimate
government interest of deterring illegal reentry by those who have committed
drug-related and violent crimes,” see United States v. Ruiz-Chairez, 493 F.3d 1089,
2 12-10116
1091 (9th Cir. 2007). Moreover, we have explained that, post-Booker, policy-
based arguments concerning the Guidelines may be used to attack the
reasonableness of a particular sentence, but not to challenge a provision of the
Guidelines “in isolation.” See United States v. Barsumyan, 517 F.3d 1154, 1158-
59 (9th Cir. 2008). Therefore, we reject Elisea-Gonzalez’s per se challenge to the
16-level enhancement.
VACATED and REMANDED for resentencing.
3 12-10116